From the desk of Felicia Pasculli, Esq.
It is important for a single person to undertake long term health care and estate planning. Most single persons think planning is just for couples. It’s not surprising; the law has always been predisposed to the traditional family – spouses and children. New York’s intestacy laws (how the blood line takes when there’s no Last Will & Testament) favor the traditional family. For example, wife passes and has no will. For property not jointly owned or without beneficiary designations, husband and children will share. However, what happens when you’re single?
The estate of an unmarried person who has failed to write a will, establish a trust, or name designated beneficiaries, goes to his or her parents. If parents are deceased, then to siblings. If siblings are deceased, then to any children they may have had. I’ve represented estates where the decedent did not know the eventual beneficiary because their connection was grandmothers who were sisters. And if no consanguinity exists up to that point, the single person’s estate goes to the state. Many times, the bloodline would have been the last choice of the decedent.
Bloodline also takes precedence in the handling of remains unless the decedent has executed a form called Appointment of Agent for the Disposition of Remains. Even in the case of a long-time relationship, unless a partner has legally established the other’s right to make funeral and burial arrangements, the deceased partner’s family has the legal right. The state developed this form since there were heart-breaking episodes of estranged families swooping in to take over arrangements at death, at times barring the companion from the funeral.
Health care decision-making is handled in a similar manner. If a single individual is hospitalized and has not executed a health care proxy, family will often be allowed to make decisions such as executing do not resuscitate orders (DNRs). I vividly remember one example. A close friend suffered a traumatic brain injury and was in a coma. Fortunately, he had executed a health care proxy naming his longtime companion. After two weeks, his brother demanded all extraordinary measures be stopped. However, the companion was the proxy. My friend awoke after six weeks. She knew his wishes much more deeply than his brother.
How about legal and financial matters? Here’s where no one, including a spouse, can act to obtain information on assets, pay bills, or bring claims unless appointed an agent under a Power of Attorney (“POA”). Every adult needs a power of attorney. Unless assets are jointly owned, there’s no access to accounts. A joint owner of real estate, including a spouse, has no right to convey or mortgage property without the consent of the other through a power of attorney.
What happens if a crisis ensues and no advance planning has taken place? The only way to assert control over an individual’s healthcare or financial affairs is through the guardianship process. Bloodline also takes precedence in this process. Guardianships are costly and often result in family contention. Guardians must report annually to the Court regarding their ward’s personal needs and financial circumstances.
A productive consultation with an estate planning attorney should include a discussion regarding trustworthy agents to act on behalf of the client if necessary. It is important that every person’s wishes be respected and assets protected should a crisis or death occur.